Mays-Carney v County of Suffolk

Annotate this Case

Download PDF

Mays-Carney v County of Suffolk 2021 NY Slip Op 33594(U) January 22, 2021 Supreme Court, Suffolk County Docket Number: Index No. 614628/2019 Judge: Joseph A. Santorelli Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 614628/2019 FILED: SUFFOLK COUNTY CLERK 01/22/2021 12:31 PM .tr·\::·-,~~\ r,~IJ -rl'U :. · NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/22/2021 \%\ 11. ·(· l_)...~ INDEXNo. INDEX No. 614628/2019 614628/2019 CAL CAL No. SHORT SHORT FORM FORM ORDER ORDER SUPREME SUPREME COURT COURT - STATE STATE OF NEW YORK NEW YORK I.A.S. SUFFOLK COUNTY LA.S. PART PART 10 -, SUFFOLK COUNTY PRESENT: PRESENT: Hon. MOTION MOTION DATE DATE 6-15-19 6-15-19' TE 12-10-2020 SUBMIT SUBMIT DA DATE 12-10-2020 Mot. Seq.# Seq. # 01 - Mot Mot D JOSEPH A. SANTORELLI SANTORELLI JOSEPH Justice of ofthe Supreme Court the Supreme _Court Justice ________________________________________ --------~---~-----X ---------------------------------------. --------· --- .-----X HARMON, HARMON, LINDER LINDER & ROGOWSKY ROGOWSKY for Plaintiff Plaintiff Attorneys for Attorneys PARK AVE, AVE, STE STE 2300 2300 3 PARK NEW YORK, NY 10016 NEW YORK, NY 10016 JANICE MAYS-CARNEY, MAYS-CARNEY, JANICE Plaintiff, Plaintiff, -against-against- DENNIS M. M. BROWN, BROWN, ESQ. ESQ. DENNIS SUFFOLK COUNTY COUNTY ATTORNEY ATTORNEY SUFFOLK Attorney for DefendantDefendant- SUFFOLK SUFFOLK Attorney for H. LEE BLDG., PO BOX LEE DENNISON DENNISON BLDG., BOX 6100 6100 VETERANS MEMORIAL MEMORIAL HWY HWY 100 VETERANS HAUPPAUGE, NY NY 11788 11788 HAUPPAUGE, COUNTY COUNTY OF SUFFOLK, SUFFOLK, TOWN TOWN OF BABYLON, POLITAN BABYLON, METRO METROPOLITAN TRANSPORTATION TRANSPORTATION AUTHORITY AUTHORITY (MTA), (MTA), LONG LONG ISLAND ISLAND RAILROAD RAILROAD d/b/a d/b/a MTA MTA LONG LONG ISLAND ISLAND RAILROAD RAILROAD (LIRR), (LIRR), ST ALCO CONSTRUCTION STALCO CONSTRUCTION INC., INC., and L.K. COMSTOCK COMSTOCK & COMPANY, COMPANY, INC., JOSEPH WILSON, WILSON, ESQ. ESQ. JOSEPH TOWN ATTORNEY-TOWN ATTORNEY- TOWN OF BABYLON BABYLON TOWN Attorney for for Defendant-13ABYLON Defendant- BABYLON Attorney 200 EAST EAST SUNRISE SUNRISE HWY HWY LINDENHURST, NY 11757 LINDENHURST, NY 1I 757 Defendants. Defendants. SHEIN SHEIN & ASSOCIATES, ASSOCIATES, P.C. P.C. Attorney for for DefendantsDefendants- MTA MTA & LIRR LIRR Attorney 575 UNDERHILL UNDERHILL BLVD, BLVD, STE STE 112 SYOSSET, NY 11791 SYOSSET, NY LAW LAW OFFICE OFFICE OF OF ANDREA ANDREA G. SA WYERS WYERS ALCO Attorney for. DefendantDefendant- ST Attorney STALCO POBOX2903 POBOX 2903 HARTFORD, HARTFORD, CT CT 06104-2903 06104-2903 LEWIS BRISBOIS BRISBOIS BISGAARD BISGAARD & SMITH, SMITH, LLP LLP LEWIS Attorney COMSTOCK for DefendantDefendant~ L.K. COMSTOCK Attorney for l'.. 77 WATER WATER ST,# ST, # 2100 2100 NEW YORK, NY 10005 : NEW YORK, NY 1 ~---------------------------------------------------------X ·---------------------------------------------------------X Upon the following following papers numbered l..:.fil..,_ l...:...QL. read read on this motion motion for summary summary judgment; of Motion/ Motion! Order Order Upon papers numbered judgment: Notice Notice of Show Cause Cause and and supporting supporting papers Notiee of of ClOSS MotioIl and and supporti11g suppoI'ting papeI Answering Affidavits Affidavits and to Show papers 1 - 22 ; ·Notice €1 oss Motion papct sS _; _ ; Answering supporting papers 28,29 & 37 - 55 ; Replying Replying Affidavits Affidavits and supporting supporting papers & 60 - 63 ; Otltct_, Otllel_, (and (and 29 - 36 & papers 56 - 59 & supporting papers 23 - 28. aftct afteI hca1 heal ing counsel eounse! in support support and and opposed opposed to the motion) motion) .it it is, · ./ [* 1] 1 of 4 /I FILED: SUFFOLK COUNTY CLERK 01/22/2021 12:31 PM NYSCEF DOC. NO. 84 INDEX NO. 614628/2019 RECEIVED NYSCEF: 01/22/2021 Mays-Camey Mays-Carney v. County County of of Suffolk, Suffolk, et al. Index# Index # 614628/2019 614628/2019 Page 2 Defendant Stalco pursuant to CPLR 3212 granting Defendant Staleo Construction, Construction, Inc., seeks seeks an order order pursuant CPLR 3212 granting summary summary judgment dismissing asserted against The plaintiff plaintiff and cojudgment dismissing the complaint complaint and any and all cross cross claims claims asserted against it. The defendants have filed opposition application arguing that discovery has not been been completed. defendants have opposition to the application arguing that discovery has completed. The plaintiff plaintiff seeks recovery of personal injuries injuries sustained result of seeks recovery of damages damages for personal sustained as the result of a trip and fall accident that occurred Wyandanch train train station, accident that occurred at or near near the Wyandanch station, at the southeast southeast corner comer of of the intersection of Straight Path Road and Merritt Merritt Avenue, Avenue, Wyandanch, Wyandanch, New New York York at 9:20 pm on June intersection of Straight Path Road 9:20 pm June 14, 2018. The plaintiff plaintiff claims that caused her to trip trip and fall were were as follows: claims that that "the "the defective defective conditions conditions that caused her follows: construction wooden blocks; blocks; a defective that was was elevated, uneven, un-level, un-level, construction debris debris and/or and/or wooden defective sidewalk sidewalk that elevated, uneven, broken, and/or and/or inadequate inadequate or improper improper area lighting". lighting". Stalco that the plaintiffs plaintiffs broken, and/or dilapidated dilapidated and/or Staleo claims claims that accident LIRR train train station the allegations accident occurred occurred at or near near the existing existing LIRR station and that that the allegations against against it should should be dismissed because it "was hired to construct LIRR station 300 yards yards away dismissed because "was hired construct the 'new' 'new' LIRR station 200 200 to 300 away from the accident The plaintiff plaintiff and and co-defendants argue that has not not been been completed accident site". site". The co-defendants argue that discovery discovery has completed and there there are of fact as to where where the wood wood that that the plaintiff plaintiff tripped tripped on came from, as well as questions triable triable issues issues of came from, questions about of construction removal that Stalco utilized while while doing about the location location and method method of construction debris debris removal Staleo utilized doing carpentry carpentry and construction construction work work at the site. The plaintiff plaintiff and co-defendants co-defendants claim claim that that the outstanding outstanding discovery discovery needed examination examination before of someone someone from the Stalco Staleo entity entity require denial of of this motion and a needed before trial of require denial motion for summary judgment. summary judgment. CPLR §3212(6) ~3212(b) states states that summary judgment "shall be supported supported by affidavit, CPLR that a motion motion for summary judgment "shall affidavit, by a of the pleadings pleadings and by other other available such as depositions and written admission." If an available proof, proof, such depositions and written admission." copy of attorney lacks personal knowledge of the events events giving giving rise to the cause cause of of action action or defense, defense, his attorney lacks personal knowledge of ancillary affidavit, affidavit, repeating repeating the allegations allegations or the pleadings, setting forth evidentiary evidentiary facts, ancillary pleadings, without without setting cannot motion by summary judgment (Olan Lines, Inc., Inc., 105 AD 2d 653, cannot support support or defeat defeat a motion summary judgment (Olan v. Farrell Farrell Lines, 481 NYS 2d 3 370 affdd 64 NY 1092,489 Times 70 ((lst l st Dept., Dept., 1984; aff' NY 2d 1092, 489 NYS NYS 2d 884 ((l985); 1985); Spearman Spearman v. Times nd nd Dept., 1983); Weinstein-Korn-Miller, Weinstein-Korn-Miller, New New Square Stores Stores Corp., Square Corp., 96 AD 2d 552, 465 NYS 2d 230 (2 Dept., York Civil Civil Practice 3212.09)). York Practice Sec. 3212.09)). proponent of of a summary showing of of entitlement entitlement The proponent summary judgment judgment motion motion must must make make a prima prima facie facie showing matter of of law, tendering sufficient evidence evidence to eliminate eliminate any material of fact to judgment judgment as a matter tendering sufficient material issues issues of (Friends of of Animals 1065,416 [1979]). from the case (Frie11ds A11imals v Associated Associated Fur Fur Mfrs., Mfrs., 46 NY2d NY2d 1065, 416 NYS2d NYS2d 790 [1979]). grant summary summary judgment must clearly clearly appear appear that that no material and triable To grant judgment it must material and triable issue issue of of fact is presented presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d [1957]). Once Once (Sillma11 Twe11tietlt Ce11tury-Fox Film Corporatio11, NY2d 395, 395, 165 NYS2d NYS2d 498 [1957]). offered, the burden shifts to the opposing defeat the such proof proof has been been offered, burden then then shifts opposing party, party, who, who, in order order to defeat motion for summary summary judgment, must proffer evidence in admissible admissible form form ... ... and and must must "show "show facts facts motion judgment, must proffer evidence sufficient to require require a trial trial of of any issue issue of of fact" fact" CPLR3212 CPLR3212 [b]; Gilbert Gilbert Frank Frank Corp. v Federal Federal sufficient Insurance 966,525 NYS2d 793,520 NE2d [1988]; Zuckerman City of of New York, Insurance Co., 70 NY2d NY2d 966,525 NYS2d 793,520 NE2d 512 [1988]; Zuckerman v City New York, 557, 427 NYS2d [1980]). The The opposing opposing party must assemble, assemble, lay bare bare and and reveal reveal his 49 NY2d NY2d 557,427 NYS2d 595 [1980]). party must proof order to establish establish that that the the matters matters set forth forth in his pleadings and capable capable of of being being proof in order pleadings are real and established Liberty Bus Bus Co., 79 AD2d 435 NYS2d NYS2d 340 established (Castro (Castro v Liberty AD2d 1014, 1014,435 340 [2d Dept Dept 1981]). 1981]). Furthermore, Furthermore, evidence submitted submitted in connection connection with with a motion motion for summary summary judgment should be viewed viewed in the light light the evidence judgment should [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 01/22/2021 12:31 PM NYSCEF DOC. NO. 84 INDEX NO. 614628/2019 RECEIVED NYSCEF: 01/22/2021 Mays-Camey Mays-Carney v. County County of of Suffolk, Suffolk, et al. Index # 614628/2019 614628/2019 Page 3 most favorable party opposing opposing the motion motion (Robinson (Robinson v Strong Strong Memorial Memorial Hospital, Hospital, 98 AD2d AD2d 976, most favorable to the party 470 NYS2d NYS2d 239 [4th Dept Dept 1983]). 1983]). On a motion motion for summary judgment the court court is not to determine determine credibility, credibility, but but whether whether there there summary judgment exists issue (see S.J. S.J. Cape/in Associates v Globe Mfg. Mfg. Corp., NY2d 338, 338, 357 NYS2d NYS2d 478, exists a factual issue Capelin Associates Corp., 34 NY2d 313 NE2d NE2d 776 [1974]). However, the court court must must also determine determine whether whether the factual factual issues issues presented presented are [1974]). However, unsubstantiated (Prunty Ke/tie's Bum Bum Steer, Steer, 163 AD2d AD2d 595,559 595, 559 NYS2d NYS2d 354 [2d Dept Dept genuine genuine or unsubstantiated (Prunty v Keltie's 1990]). If the issue claimed to exist exist is not genuine genuine but is feigned feigned and there there is nothing nothing to be tried, then then issue claimed summary judgment should granted (Prunty (Prunty v Keltie's Ke/tie's Bum Bum Steer, Steer, supra, supra, citing citing Glick Do/leek v summary judgment should be granted Glick & Dolleck NY2d 439,293 NYS2d 93, 239 NE2d NE2d 725 [1968]; Trust Co. v Tri-Pac Export Corp., Tri-Pac Export Corp., 22 NY2d 439, 293 NYS2d [1968]; Columbus Columbus Trust Campolo, AD2d 616, 616,487 NYS2d 105 [2d Dept Dept 1985], affd, affd, 66 NY2d NY2d 701, 701,496 NYS2d 425, 425,487 Campolo, 110 AD2d 487 NYS2d 496 NYS2d 487 NE2d NE2d 282). Healthcare Corp., AD3d 712, 715 [2d Dept Dept 2005], 2005], the In Colombini Colombini v Westchester Westchester County County Healthcare Corp., 24 AD3d Court that Court held held that Summary judgment should should be denied denied as premature premature where, where, as here, here, the party party Summary judgment opposing motion has not had an adequate adequate opportunity opportunity to conduct conduct discovery discovery opposing the motion Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d NY2d 494, (see CPLR CPLR 3212 3212 [f]; Ross Curtis-Palmer Hydro-Elec. 506,618 NE2d 82, 82,601 NYS2d 49 [1993]; OK Petroleum Petroleum Distrib. Distrib. Corp. v 506,618 NE2d 601 NYS2d [1993]; OK Nassau/Suffolk Corp., 17 AD3d 551,793 [2005]; Nassau/Suffolk Fuel Fuel Oil Oil Corp., AD3d551, 793 NYS2d NYS2d 152 [2005]; Mazzola [2002]). Mazzola v Kelly, Kelly, 291 AD2d AD2d 535, 738 NYS2d NYS2d 246 [2002]). Court in Gardner Gardner v Cason, Cason, Inc., The Court Inc., 82 AD3d AD3d 930,931-932 930, 931-932 [2d Dept Dept 2011], 2011], held held It was "This is was premature premature to award award summary summary judgment judgment at this this stage stage of of the case. "This especially so where especially where the opposing opposing party party has not not had had a reasonable reasonable opportunity opportunity disclosure prior Vii. of the motion" motion" (Baron (Baron v Incorporated Incorporated Vil. for disclosure prior to the making making of of Freeport, 793, 533 NYS2d [1988]). The of Freeport, 143 AD2d AD2d 792, 792,793,533 NYS2d 143 [1988]). The plaintiff plaintiff and Grumbly submitted, submitted, among among other other things, things, affidavits affidavits containing containing the defendant defendant Grumbly discrepancies pertaining of the accident, accident, including including as to discrepancies pertaining to the circumstances circumstances of culpability. Furthermore, Furthermore, no depositions depositions have have been been conducted, conducted, the decedent's decedent's culpability. including any depositions including depositions of of key eyewitnesses eyewitnesses identified identified in the police police accident accident report. Accordingly, plaintiffs report. Accordingly, the Supreme Supreme Court Court should should have have denied denied the plaintiffs motion for summary summary judgment issue of of liability liability with with leave leave to renew renew motion judgment on the issue after the the completion completion of of discovery discovery (see Gruenfeld Gruenfeld v City City of of New after New Rochelle, Rochelle, 72 AD3d 1025, 1025,900 [2010]; Aurora AD3d 900 NYS2d NYS2d 144 [2010]; Aurora Loan Loan Servs., Servs., LLC LLC v LaMattina LaMattina AD3d 578, 578,872 [2009]; Martinez & Assoc., Assoc., Inc., Inc., 59 AD3d 872 NYS2d NYS2d 724 [2009]; Martinez v Ashley Ashley Apts. AD3d 830,842 830,842 NYS2d [2007]; Tyme Tyme v City City of of New Apts. Co., LLC, LLC, 44 AD3d NYS2d 918 [2007]; New York, 22 AD3d AD3d 571, 801 NYS2d [2005]; see generally generally CPLR CPLR 3212 3212 [f]). NYS2d 744 [2005]; York, [* 3] 3 of 4 INDEX NO. 614628/2019 FILED: SUFFOLK COUNTY CLERK 01/22/2021 12:31 PM NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/22/2021 Mays-Carney v. County County of of ~uffolk, Suffolk, et al. Mays-Carney Index # 614628/2019 · Index 614628/2019 Page4 Page 4 Based upon upon a review review of of the the motion motion papers papers the the Courfconcludes Court concludes that that the the plaintiff plaintiff and and coBased defendants have have not not had had an adequate adequate opportunity opportunity to conduct conduct discovery discovery 1nto into issues issues within within the the knowledge knowledge . defendants of defendant defendant Stalco Stalco as to the the whether whether the wood wood that that the plaintiff plaintiff tripped tripped on was was part part of of the the construction construction of debris left behind behind by Stalco Stalco or part part of of a ramp ramp for its work. work. Thus Thus the the motion motion for summary summary judgment judgment on debris issue of of liability liability is denied denied with with leave leave to renew renew after after the the completion completion of of discovery; discovery; and it is further further the issue ORDERED that that a compliance compliance conference conference is scheduled scheduled for March March 18, 2021. 2021. All attorneys attorneys shall shall ORDERED appear on March March 18, 18,2021 at 10:30 a.m. a.m. via via Microsoft MiCrosoft Teams Teams in Courtroom Courtroom A361 of of the the Hon. Hon. Alan Alan D. 2021 at appear Oshrin Supreme Supreme Court Court Building, Building, 1 Court Court Street, Street, Riverhead, Riverhead, New York, as part part of of the the above-referenced above-referenced Oshrin New York, action. Attorneys Attorneys appearing appearing must must have have knowledge knowledge of of the the case case and be authorized authorized to discuss discuss details details action. regarding this this action.• action ..A failure to appear appear may may result result in the matter matter being being dismissed dismissed or a default default being being regarding A failure ~~. granted. .I i ' foregoing constitutes constitutes the the decision decision and and Order Order of of the the Court. Court. The foregoing Dated: January January 22, 22,2021 Dated: 2021 PH A. SANTORELLI SANTORELLI PH J.S.C., J.S.C .. FINAL DISPOSITION DISPOSITION FINAL X NON-FINAL DISPOSITION DISPOSITION NON-FINAL I I [* 4] 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.